Fort Walton Beach Council agenda — 11-14-2006‎(workshop)‎ — reading text

privacy places additional burdens on families and may severely limit the areas for children to study and NLRC Report at p. 18). Moreover, the study noted that " renters who are new play..." ( immigrants and/ or are exceeding the unit capacity are also less likely to complain or identify maintenance problems that could lead to unhealthy housing ( mold, mildew poor ventilation, lead, roach, or rodent infestations, or other potential health hazards." ( NLRC Report at pg. 18). With individuals who are not lawfully present in the United States ( or " illegal aliens," as the term is used in 8 U. S. C. Section 1621( d)), there is an increased chance that they will reside in dwelling units w~ thout typical leasing, payment and other tenancy arrangements that enable the civil and regulatory processes of this City to be effective. The regulations of the City regarding housing and property maintenance often depend upon reporting by residents and neighbors as a means of bringing unlawful conditions to the City' s attention. Because illegal aliens do not wish to call attention to their presence, such individuals are less likely to report such conditions, and notify authorities, or to participate in subsequent proceedings to remedy such conditions. This creates an increased likelihood that housing and property maintenance violations will remain unreported. Because such conditions are unreported, there is an increasing chance that such conditions will multiply in the future. There is a greater chance that individuals will occupy residential units in excessively large numbers or under living conditions that do not meet applicable building and health and safety codes. This creates unanticipated burdens on the units and the public infrastructure supporting such dwellings. Additionally, the lack of normal tenancy arrangements ( such as written leases, records of rent receipts, and related documentation which normally accompany a tenancy arrangement) hampers the enforcement processes among private parties ( Le. through small claims court) and with other regulatory agencies at the state and local level. The ability of tenants and neighbors to avail themselves of normal civil and regulatory remedies is hampered. The United States Supreme Court has made it clear that the federal government possesses the exclusive power to enact a regulation of immigration, which has been defined by the Supreme Court as a " determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." ( See De Canas v. Bica, 424 U. S. 351, 355 ( The 1976)). federal government' s power to regulate immigration derives from the Constitution' s grant to Congress of the power to establish a Uniform Rule of Naturalization, and to regulate commerce. Congress has exercised this power in the Immigration and Naturalization Act (" INA"), 8 U. S. C. Section 1001 et. seq. Staff Report October 4, 2006 Page 3 The INA is a regulatory scheme which regulates the authorized entry, length of stay, residence status and deportation of aliens. The preemptive effect of federal authority over immigration was felt particularly hard in California after the passage of Proposition 187 in 1994 by a vote of 59% in favor and 41 % opposed. The stated purpose of Proposition 187 was " to provide for cooperation between the agencies of state and local government with the federal government. and to establish a system of required notification by and between such agencies. to prevent illegal aliens in the United States from receiving benefits or public seNices in the State of California" ( Proposition 187, Section 1). Nonetheless, after two rounds of litigation in the federal courts. nearly all of the provisions of Proposition 187 were invalidated. generally on federal preemption grounds. Proposition 187 was preempted chiefly because it created new immigration categories at the state level and because it attempted to authorize state officers to make independent judgments about an alien' s immigration status. ( See Leaaue of United Latin American Citizens. et. al. v. Wilson et. al. 908 F. Supp. 755 ( 9th Cir. 1995). 997 F. Supp. 1244 ( 9th Cir. 1997)). Various provisions of the INA criminalize activities relating to the bringing in and harboring of aliens who lack the lawful authority to enter or remain in the United States, and criminalizes certain other activities concerning the transportation of such aliens or the encouragement of inducement of such aliens to reside in the United States, and Courts have generally interpreted the code of INA Section 274 broadly. ( See Congressional Research SeNice Memorandum of June 29, 2006 and cases cited at CRS- 2, footnote 5). However, the Court has also made it clear that the mere fact that a state or local statute pertains to aliens does not require a finding that it is preempted. The Court has left considerable room for states U[ and municipalities to act in the field. S] tanding alone, the fact that aliens are the of a state sUbject statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." ( De Canas at p. 355.) State and local statutes affecting aliens that are consistent with congressional objectives have been upheld on numerous occasions. ( See. e. g., De Canas ( upholding California law concerning the employment of illegal aliens); Arizona v. Salazar, Ariz. Sup. Ct. CR2006- 005932 ( 2006) ( upholding state law criminalizing the smuggling of illegal aliens)). Regulation of businesses within its jurisdiction is a traditional and well accepted provision of California law, flowing from the so- called " police power" of Section 7 of Article XI of the California Constitution, enabling a city to enact measures to protect the health, welfare, and safety of its residents. Presently, Escondido Municipal Code Section 16- 17 requires a business license for all persons engaged in certain types of businesses. Among those regulated are those who rent residential real estate. The general practice of the City has been to require a business license for those who rent units in excess of three units; due to staffing constraints and availability of resources, enforcement of a business license is not requested for individual dwellings on a lot or for individual rooms in a homeowner' s home.  f Staff Report October 4, 2006 Page 4 The proposed amendment to the Escondido Municipal Code focuses on a particularized local issue, that of rental dwelling units and the conditions in those units. To the extent that harboring illegal aliens contributes to those problems ( see discussion above), the City of Escondida can appropriately take action. The proposed ordinance does not call upon local officials to make independent or separate determinations of legal status-- a question property left to federal authorities. Proposed Section 16E- 2 requires individuals who believe a violation is taking place to file a complaint containing certain information, which is used to determine the legal status of those residing in the dwelling. After receiving advice from federal authorities that an individual is in fact an illegal alien, the City meW then act against the business license of the landlord harboring the illegal alien. Penalties under the ordinance include suspension and revocation of licenses as well as misdemeanor penalties for subsequent violations. Landlords have certain due process protections against the revocation of their business license, including a right to appeal, which are found in current provisions of the Escondido Municipal Code ( see Section 16- 221, et seq.). The proposed ordinance is entirely consistent with federal law on the subject of harboring illegal aliens. Such harboring is prohibited under 8 U. S. C. 1324( a)( 1)( A). The provision of housing to illegal aliens is a fundamental component of harboring. Accordingly, the proposed ordinance reinforces federal law and is entirely consistent with congressional objectives as expressed in the INA. Copies of the materials noted above have been provided to the City Council under separate cover. Resp, cttully sURmitted, 1/ t"/ ) ./' i jl l . 1: " effr/ y R~ City Attorney k  J- Za06 ar ,..!/ oe : 06Ftd FROIHI LLER , ANSLEY 8509376158 T- SS9 P.~ GZ/ DD2 F- 939 MILT. ER &. ANSLEY, P. A. A TTORNEYS AT LAW Wildcat Plaza 415 Mountain Drive. Suite 3 Destin, Florida 32541. 2349 J. Jerome Miller Telephone: ( 850) 837- 3860 . Fucximlle: ( 850) 837-6158 Andrea D. Ansley E-Mail: com miler@de$tinlawtirm Stephanie M. Ockunui MEMORANDUM TO: Mayor Craig H. Barker FROM: City AttOrney ~ DATE: June 30, 2006 RE: